Green Acres Enterprises, Inc. v. U.S., 04-2399.

• Decision Date: 10 August 2005
• Docket Number: No. 04-2399.,04-2399.
• Citation: 418 F.3d 852
• Parties: GREEN ACRES ENTERPRISES, INC.; Green Acres Land & Cattle Co.; Robert Jenkins; Kris Jenkins; Karl Jenkins; Marsha Jenkins; Hugh Jenkins; Barbara Jenkins; W.K. Jenkins; M. Earlene Jenkins; Mary Ann Green; Karla Jenkins Wilson; Patricia Inglish, Appellants, v. UNITED STATES of America, Appellee. Pacific Legal Foundation, Amicus on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 852

418 F.3d 852

GREEN ACRES ENTERPRISES, INC.; Green Acres Land & Cattle Co.; Robert Jenkins; Kris Jenkins; Karl Jenkins; Marsha Jenkins; Hugh Jenkins; Barbara Jenkins; W.K. Jenkins; M. Earlene Jenkins; Mary Ann Green; Karla Jenkins Wilson; Patricia Inglish, Appellants, v. UNITED STATES of America, Appellee.

Pacific Legal Foundation, Amicus on Behalf of Appellant.

No. 04-2399.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2005.

Filed: August 10, 2005.

Edwin Gordon Harvey, argued, St. Louis, Missouri (Sharon B. Rosenberg, St. Louis, Missouri, on the brief), for appellant.

Anthony T. Caso and Meriem L. Hubbard, Sacramento, California on behalf of Pacific Legal Foundation, amicus brief in support of the appellants.

Charles Mark Thomas, AUSA, argued, Kansas City, Missouri, for appellee.

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

Green Acres Enterprises, Green Acres Land & Cattle Co., and the individual owners of each entity (collectively, the landowners) appeal from the district court's¹ grant of the government's motion to dismiss for lack of subject matter jurisdiction. We affirm.

I.

The landowners are the former owners of two large properties located along the Marmaton River—also known as the Little Osage River—in Missouri (the "Green Acres farm" and the "Richter farm"). Until April 1998, the landowners farmed portions of both properties and leased other portions to third-party farmers, who planted and harvested the crops on the leased land for themselves. Since the 1960s, each property had been protected from flooding by two large levee systems, which were each composed of the levees themselves, a system of internal drainage ditches, and large pumps that served to draw water from the farms and drainage ditches to the river through pipes embedded in the levees.

Both levee systems, however, suffered extensive damage in the great flood of 1993. The landowners subsequently commenced repairs to the levee systems in the spring of 1994. The government, claiming that such repairs violated the terms of easements granted in favor of the United States Army Corps of Engineers (Corps), obtained an injunction prohibiting the landowners from carrying out the repairs. The landowners appealed, and we held that the easements did not require the landowners to obtain the Corps's consent prior to repairing the levee systems. United States v. Green Acres Enters., Inc., 86 F.3d 130, 135 (8th Cir.1996) (Green Acres I). Accordingly, we reversed and remanded the case to the district court with instructions to vacate the injunction.² Id.

In late 1996, the landowners sought to continue with and complete the repairs to the Green Acres farm levee. The proposed repairs consisted of: (1) excavation of the area surrounding a pump intake to allow the intake to operate properly; (2) excavation of a drainage ditch system to remove silt and sediment deposited there by flooding; (3) expansion of the levee at the pump station to enable vehicles to turn around when fueling the pump; and (4) restoration of various damaged portions of the levee to return them to pre-flood height. The landowners requested a formal determination from the Corps—pursuant to 33 C.F.R. § 320.1(a)(6)—that the repairs would not be subject to or would otherwise be exempted from the Clean Water Act (33 U.S.C. §§ 1251, et seq.).³

In February 1997, the Corps sent a letter responding to the landowners' request (the "February 3 letter") and determined that a portion of the proposed work would require a specific Clean Water Act permit (known as a "section 404 permit") because, in the Corps's opinion, the work would involve a discharge of dredged or fill material into the wetlands surrounding the levee system. See 33 U.S.C. § 1344 (dredged and fill material discharge permits); 33 C.F.R. § 328.3(a)(7) ("waters of the United States" include wetlands adjacent to protected waters). The Corps also determined that a number of nationwide permits (covering activities for which the landowners would not be required to seek individual approval) were inapplicable to the proposed work and that most of the proposed work was ineligible for either the Clean Water Act's levee maintenance exception, see 33 U.S.C. § 1344(f)(1)(B), or its ditch maintenance exception, see 33 U.S.C. § 1344(f)(1)(C).⁴

The February 3 letter sparked an extended and increasingly contentious series of correspondence between the landowners and the Corps. In their initial response to the February 3 letter, the landowners disputed that the nationwide permits and the ditch maintenance exception were inapplicable. More importantly, the landowners argued that the Corps's determination that a permit was required for the proposed work was squarely in violation of a nationwide injunction entered against the Corps by the United States District Court for the District of Columbia in American Mining Congress v. United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C.1997) (American Mining Congress I). The injunction prohibited the Corps from enforcing the so-called Tulloch Rule, which had previously allowed the Corps to exercise Clean Water Act jurisdiction over all excavation activities, including those that resulted only in "incidental fallback," on the theory that such activities almost always resulted in a discharge into waters of the United States.⁵ Id. at 270 & n. 3.

The landowners contended that the February 3 letter violated the injunction both generally by asserting Clean Water Act jurisdiction over the proposed work in the first instance and specifically by making the following statement:

As you may know, because of a recent Federal case [(American Mining Congress I)], the Corps has been directed to suspend enforcement of the [Tulloch Rule] until the issue is ultimately settled in the courts. However, until the Courts rule on the efficacy of the Tulloch Rule, we advise you to not perform any work which would be considered a discharge under the [Tulloch Rule].

The landowners asserted that these acts showed a conscious decision on the part of the Corps to disregard the American Mining Congress I injunction. The Corps clarified its position regarding the injunction in a subsequent letter (the March 13 letter):

[O]ur February 3, 1997 letter states "...the Corps has been directed to suspend enforcement of the [Tulloch Rule] until the issue is ultimately settled in the courts." That remains our position. Our next statement "...we advise you to not perform any work which would be considered a discharge under the [Tulloch Rule]." is ambiguous and [we] will clarify it.

Potential permit activities proposing activities involving only incidental fallback, will not be required to obtain individual permits.

...

Our past experience with the work performed at the Green Acres and Richter Farms is that it has involved bulldozer work where soil was redeposited from one place to another in waters of the United States by bulldozer blades, while trees, limbs, vegetation, root wads and brush were pushed into stockpiles, and land was leveled. These kinds of activities result in more than "incidental fallback".

Correspondence between the landowners and the Corps continued for eight months, with the landowners arguing that the Corps's assertion of jurisdiction violated the American Mining Congress I injunction and the Corps maintaining that its actions fully comported with the injunction and, accordingly, that the proposed projects on both the Green Acres farm and the Richter farm—which the landowners detailed in another request for a 33 C.F.R. § 320.1(a)(6) ruling—were properly subject to the Clean Water Act. Finally, in November 1997, the landowners agreed to sell both properties to the Missouri Department of Conservation. The sale was consummated in April 1998.

In June 2002, the landowners filed suit against the government in the United States District Court for the Western District of Missouri, pursuant to the Federal Tort Claims Act (FTCA). Their complaint sought monetary relief on four counts: (1) trespass; (2) nuisance; (3) substantive due process violations; and (4) inverse condemnation. The government moved to dismiss the complaint for lack of subject matter jurisdiction, or, in the alternative, to dismiss for failure to state a claim or to grant summary judgment. The district court found that counts 1 and 2 failed the FTCA's private analogue requirement, see 28 U.S.C. § 1346(b)(1), and were further barred by the FTCA's discretionary function exception, see 28 U.S.C. § 2680(a). It therefore concluded that it did not have jurisdiction to hear those claims and granted the government's motion to dismiss.⁶ See also Fed.R.Civ.P. 12(b)(1) (dismissal for lack of subject matter jurisdiction).

II.

We review a district court's decision to dismiss a complaint for lack of subject matter jurisdiction de novo, placing the burden of proving the existence of subject matter jurisdiction on the plaintiff. V S Ltd. Partnership v. Dept. of Housing and Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000). Because jurisdiction is a threshold question, the court may look outside the pleadings in order to determine whether subject matter jurisdiction exists. Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir.1990).

The FTCA waives federal sovereign immunity and grants federal district courts jurisdiction over a certain category of claims against the United States only to the extent that a private person, under like circumstances, would be liable to the plaintiff under the substantive law of the state where the alleged wrongful conduct took place (in this case, Missouri). Washington v. Drug Enforcement Admin., 183 F.3d 868, 873 (8th Cir.1999). Thus, to state a claim that is cognizable under the FTCA, a claim against the government must have a "private analogue"; in other words, the claim must be such that a similarly situated private party would be liable for the same conduct in...